Employees acquiring disability during service cannot have their pay reduced, as per statutory protections under the Act.

ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the rival parties.

02] By this writ petition, the petitioner has challenged award dated 24/09/2019 passed by the Presiding Officer, Central Government Industrial Tribunal (CGIT)-cum-Labour Court, Nagpur, whereby a Reference has been answered in the negative against the petitioner and it has been held that the petitioner is not entitled to any relief.

03] The facts leading up to the file of the present petition are that the petitioner was appointed in Time Rated Category on 16/02/1981 in Pipla Colliery of the respondent-Western Coalfields Limited (WCL) and upon promotions, on 25/11/2005, he was appointed in the post of Mechanical Fitter Category-IV. It was the case of the petitioner that during the course of the employment in the Colliery, he suffered from physical disability, as a consequence of which he was referred to the Apex Medical Board. Upon examining the petitioner, the Board opined that he had suffered from lowering of vision and that he was now fit only for surface job. Accordingly, the petitioner was deployed on surface job and by office order dated 28th/30th December, 2010, he was brought down from Category-IV to Category-I, thereby reducing his existing pay scale of ₹551.07 to lower pay scale of ₹345.67 with effect from 01/01/2011.

04] Thereafter, the respondent-WCL referred the petitioner to the Apex Medical Board and pursuant to his examination, he was categorized as unfit. In terms of Clause 9.4.0 of the National Coal Wage Agreement-VI (NCWA-VI), the son of the petitioner, as dependent, was given employment and the petitioner stood retired with effect from 12/02/2013.

05] Thereafter, the petitioner moved a representation raising grievance that his pay scale ought to have been protected and it could not have been brought down, merely because he had suffered disability during his service. As no relief was forthcoming, ultimately the dispute raised by the petitioner led to a Reference under Section 10 of the Industrial Disputes Act, 1947 . A precise question was referred by the competent authority to the CGIT on 25/11/2014 and it reads thus:

“Whether the action of the management of Western Coalfields Ltd., Nagpur Ara, Jaripatka, Nagpur in deducting the basic salary in respect of Sh. Gunwanta Govinda is just, fair and legal? If not, to what relief the concerned workman is entitled to?”

06] The CGIT-cum-Labour Court took into consideration the rival contentions and passed the impugned award. The CGIT also took into consideration the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “the Act of 1995” for short). A reference was made to the definitions of the terms “disability” and “person with disability”. In the context of Section 47 of the Act of 1995, despite taking note of the fact that the petitioner had suffered disability during the course of his service, the CGIT in the impugned award answered the reference in the negative, only on the ground that the petitioner had failed to file a disability certificate to support his claim. Only on this basis, it was held that the CGIT did not have jurisdiction to pass an order in favour of the petitioner.

07] Mr. Lahiri, learned Counsel appearing for the petitioner, invited attention of this Court to the provisions of the Act of 1995. Much emphasis was placed on Section 47 of the said Act to contend that the same applied to persons who acquired disability during the course of their service. This was distinct from persons with disability claiming employment on the ground of such disability, in terms of the mandatory provisions of the Act of 1995. It was submitted that although the CGIT did take into consideration the provisions of the Act of 1995, it confused the requireme